Effective Date : 21/09/2022
1 General Provision
1.2 As a Creator, by uploading any Music and Artworks to the Site through one of the Service listed below:
· you represent and warrant that the use or other exploitation of your Music and/or Artworks by Winamp and its authorized sublicensees and distributors and/or by users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
· you represent and warrant that, to the extent you are the songwriter of any or all of the Musical Works embodied in your Sound Recordings or Music Videos, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any Performing Rights Organization (“PRO”) or other Collective Management Organization (“CMO”), whether based in Belgium or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO, CMO or music publisher of the rights you grant under this Agreement, notably the rights granted to Winamp for the reproduction, public performances and communications to the public of your Musical Works, and that no fees or payments of any kind whatsoever shall be due to any music publisher for the use or re-use of your Musical Works as authorized under this Agreement. If on the contrary such fees or payments happen to be due, you shall be solely responsible for their payment;
· you represent and warrant that no fees of any kind shall be due to any union, guild, non-featured vocalist or musician, engineer, producer, label, or any similar third party, for the use or re-use of your Music as authorized under this Agreement. If on the contrary such fees or payments happen to be due, you shall be solely responsible for their payment;
· in the event that the Musical Works were written and/or composed and/or performed by various writers and/or performers, you shall be responsible for sharing with these rights holders, pursuant to the agreements entered into with them, the sums stemming from your Revenue Share.
In case it appears, or it is suspected that the Music and/or Artwork infringes third parties’ copyright or other intellectual property rights and/or violates intellectual property laws, Winamp reserves the right to refuse or remove said Music and/or Artwork from the Service.
2. Fanzone Service
2.1 Fanzone Service
Winamp enables Users to purchase access to Music from Creators through the Service “Fanzone” by subscribing to a Creator tier (“Tier Subscription”). The Music is afterwards available for the User in the section “My Fanzone” of the Winamp Player.
The Service may also include specific recommendations to the Creator to improve his/her use of the Service (e.g. type of social post, pricing tiers, better audience targeting, …)
2.2 Fees and Payments
Each such purchase involving Tier Subscription is a “Digital Transaction”. Digital Transactions under this Agreement are facilitated by Winamp and our third-party payment processors.
If we are required by law to deny access through the Service to previously accessed Music, then the User who subscribe to access to that Music will not get the Tier Subscription fee refunded, except as required by applicable law.
You warrant that if you enter into a Digital Transaction, then you shall be able to make full and immediate payment for the requested Service.
To the extent permitted by law and this Agreement and in the form, nature, and quantity as authorized by Winamp at any given time, Creators may sell products and/or services to a User through a Tier Subscription available in the Fanzone on the Site. As a Creator, subject to the minimum determined by Winamp you will set the prices for the products and services that are charged through Digital Transactions (the “Prices”) through the Site, and you may change the Prices at your sole discretion subject to the aforementioned minimum.
In order to participate in Digital Transactions, you may be required to open an account with a designated third-party payment processor, and you agree to be bound by the terms and conditions of such third-party payment processor for purposes of participating in the Digital Transactions. To the extent necessary you the Creator, as applicable (i) designate us as your agent for the sole and exclusive purpose of processing Digital Transactions on your behalf; and (ii) authorize us or our designated third-party payment processor to collect payments for Digital Transactions on your behalf.
For Tiers Subscriptions, Winamp shall pay you as Creator your “Revenue Share” which is composed of payments received from Users minus the applicable Fees, taxes (if we are liable for paying the relevant tax on sales to Users), and any other applicable fees which shall be directed to Winamp at the time of each payment, as well as any fees or other amounts which may happen to be due and payable to third parties relating to the Music and Artworks including, without limitation: (a) mechanical license fees; (b) performing rights fees; (c) guild fees; and (d) any other fees attributable to the Music and Artwork.
When you receive a payment for a Digital Transaction, you may be liable to Winamp or the applicable third-party payment processor for the full transaction amount, plus any processing fees if the payment is later invalidated for any reason including but not limited to chargeback or dispute. You agree to allow Winamp to recover any amounts due to Winamp by debiting your account or by instructing our third-party payment processors to direct such amounts to us. If there are insufficient funds to cover your liability, you agree to reimburse Winamp through other means.
Winamp shall be entitled to a share of the revenue received from Digital Transactions (the “Fees”), which shall be calculated on your gross revenue from Digital Transactions, not including any Digital Transactions for which you or we provide a refund, in accordance with the rate schedule set forth in the Pricing document. You shall be solely responsible and liable for, and Winamp shall have no responsibility or liability for, any third-party payment processor fees, bad debts (such as credit card returns or fraud), disputed payments, and refunds, except as provided in this Agreement.
Winamp retains the right, but does not have the obligation, to immediately halt the offering or sale of any goods or services, prevent or restrict access to the Site or the Services or take any other action in case of technical problems, objectionable material, inaccurate listings, or actions otherwise prohibited by the procedures and guidelines contained on the Site, or for any other reason in the sole and absolute discretion of Winamp, and to correct any inaccurate listing or technical problems on the Site. Winamp may immediately halt the offering or sale of any goods or services upon receipt of notifications of claimed infringement, upon acquiring knowledge of actual infringement, or becoming aware of facts or circumstances from which infringing material is apparent with respect to any goods or services.
2.4 Intellectual Property Rights and Licenses
The Service provides Creators with the ability to upload Music and Artworks owned or controlled by such Creators to the Site.
Winamp will not have any ownership rights in any elements of a Creator’s Music and Artworks, however, Winamp needs the following license to perform the Service. Each Creator uploading Music and Artworks to the Service grants Winamp and its authorized sublicensees and distributors, if any, the worldwide, non-exclusive, royalty-free (subject to any agreement with a CMO, as applicable), right and license to:
(i) reproduce, distribute, publicly perform (including on a through-to-the-audience basis and by means of a digital audio transmission), publicly display, create derivate works of, communicate to the public, synchronize and otherwise exploit (collectively, “Exploit”)
· The Creator’s Music and perform the Service on the Creator’s behalf (e.g., reproduce, transcode, copy and store the Creator’s Music on computer servers owned and/or operated by or on behalf of Winamp or its authorized sublicensees and distributors, and publicly perform, transmit, synchronize, stream, distribute, and playback the Creator’s Music) using any technologies or methodologies now known or hereafter developed, and
· Exploit all associated Artworks in connection with the Service.
(ii) allow Users of the Service to receive public performances and public displays of the Creator’s Music and Artworks and to reproduce the Creator’s Music and Artworks on any and all devices owned or controlled by the User for non-commercial purposes and receive performances and displays of same; and
(iii) reproduce, use, and publish, and to permit others to reproduce, use and publish, the name(s), trademarks, likenesses, and personal and biographical materials of the Creator, in connection with the provision of the Service.
To enable Winamp to Exploit your Music pursuant to the above provisions, you hereby grant to Winamp the worldwide, non-exclusive, royalty-free, sublicensable, and transferable right to use, distribute, reproduce, copy, and display your trademarks, service marks, slogans, logos or similar proprietary rights (collectively, the “Creator Trademarks”) solely in connection with the Service or in the marketing, promotion or advertising of the Service, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.
3. Service of Distribution
PLEASE UNDERSTAND THAT YOU MUST OWN OR OTHERWISE HAVE THE LEGAL RIGHT TO REPRODUCE AND DISTRIBUTE 100% OF THE RECORDINGS, MUSICAL COMPOSITIONS, LITERARY WORKS, DRAMATIC WORKS, SPOKEN WORD CONTENT, ARTWORK AND ANY OTHER MATERIAL THAT YOU INTEND TO UPLOAD AND DISTRIBUTE VIA THE WINAMP SERVICE, INCLUDING THE RIGHT TO MAKE AND DISTRIBUTE DIGITAL DOWNLOADS EMBODYING THE MUSICAL COMPOSITIONS THEREIN, AND ELECTRONIC TRANSMISSIONS OF SUCH MUSICAL COMPOSITIONS (INCLUDING, WITHOUT LIMITATION, VIA STREAMING SERVICES), AS NECESSARY.
FOR EXAMPLE, YOU CANNOT DELIVER TO US ANY REMIXES, OR RECORDINGS THAT INCLUDE SAMPLES UNLESS YOU HAVE ALL NECESSARY WRITTEN PERMISSION FROM THE SONGWRITERS AND FROM THE OWNERS OF THE APPLICABLE ORIGINAL RECORDINGS.
3.1 THE DISTRIBUTION SERVICE AND YOUR RECORDINGS
The Winamp Service enables you to upload to our servers digital files containing audio-only musical sound recordings or audio-visual works and the underlying musical compositions, literary works, dramatic works or spoken word content embodied therein (“collectively, “Recordings ”) for distribution to your choice of Digital Service Providers, streaming services, and other digital services within our distribution network ( “Digital Service Providers”), who may make your Recordings available to their customers and end users (“Customers”).
Recordings must be musical sound recordings in single track, EP, or album configuration (however, please note that Digital Service Providers will make your Recordings available to Customers to purchase or stream as individual tracks i.e., you cannot require that a Customer purchase or stream an entire album or EP as a single unit). We typically do not accept or distribute ringtones, audio books, spoken-word records, digital booklets, or other types of content; however, if we choose to do so, as determined by us on a case-by-case basis in our discretion, the terms of this Agreement shall apply to such formats.
We can currently accept Recordings in certain formats. We and/or the Digital Service Providers may require different formats or file sizes from time to time during the term, and Winamp reserves the right to convert audio files of the Recordings as necessary.
When uploading each Recording, you must provide us with all accompanying data that we or a Digital Service Provider may require (e.g., artist name, album title, each track title, genre), plus any available cover art (in JPG format with RGB color or any other format that we or a Digital Service Provider may require). For purposes of this Agreement, all such data, metadata, information, image files, artwork and any other materials you provide to us are included in the definition of “Recordings.” We may also require that you indicate if the Recording contains explicit content, in which case a Digital Service Provider may tag it accordingly.
We will automatically generate unique identifying codes for each Recording and provide them to your chosen Digital Service Providers.
3.2 DIGITAL SERVICE PROVIDERS
The rights granted by you to Winamp are non-exclusive. Be advised, however, that if you send your Recording(s) to the same Digital Service Providers via Winamp and a separate service, the double listing of your Recordings may cause complications and/or problems in those Digital Service Providers. We reserve the right to unpublish your Recording if it has already been published on the same Digital Service Provider(s) as the one(s) accessible through Winamp.
We undertake to provide your Recordings to Digital Service Providers as quickly as possible. However, it can take a few hours to a few days to several weeks for a Digital Service Provider to integrate, process and make your Recordings available to Customers, depending on the particular Digital Service Provider and the territory.
Each Digital Service Provider will determine its pricing to its Customers, as well as format or media and other terms on which it offers recordings (including your Recordings) to its Customers, in its discretion and according to its business model.
We will distribute your Recordings to Digital Service Providers on a worldwide basis (“Territory”). You can’t specify only certain countries or territories for particular Recordings.
Digital Service Providers may choose not to carry one or more of your Recordings at all or in certain territories (or to remove Recordings at any time) per their policies and practices, so we can’t make any guarantees. We may also decline to distribute (or may remove from Digital Service Providers) one or more Recordings from any or all Digital Service Providers if we receive any legal claims regarding the particular Recording(s), if we reasonably believe that any legal claims or issues may arise, if a Recording may violate the terms and conditions of any Digital Service Provider, or for any other reason in our business judgment. And if our agreement with any Digital Service Provider expires or terminates, or if that Digital Service Provider ceases to operate entirely or in a particular territory, then your Recordings will no longer be available through that Digital Service Provider.
You warrant to Winamp that you have read, understand, and agree to be bound by all of the terms and conditions of all the Digital Service Providers accessible through Winamp and that you and your Recordings and other content comply fully with those terms and conditions.
Winamp may terminate the term for any reason, including but not limited to if we reasonably believe that you or any of your Recordings or other content have violated this Agreement or the terms and conditions of any Digital Service Provider, that you or your Recordings infringe the intellectual property or other rights of any person or entity, if we are told by any Digital Service Provider or reasonably believe that Digital Service Providers will not accept your Recordings or other content specifically or categorically, or that you are otherwise abusing our Service or any Digital Service Provider or engaging in fraudulent or illegal activity.
We may also terminate the term if our Service is discontinued for any reason.
After the end of the term, we will notify all applicable Digital Service Providers to remove your Recordings and will have no further obligation to you other than to account and pay for monies earned during the term. Customers who downloaded or otherwise accessed your Recordings may be able to retain and continue listening to your Recordings even after the term of this Agreement is over.
3.4 GRANT OF RIGHTS
In order for us to provide the Service and to distribute your Recordings, you confirm that you grant us the non-exclusive, sub-licensable right and license during the term and throughout the Territory to:
· reproduce and distribute your Recordings, to Digital Service Providers for them to sell or sublicense to their Customers by any and all applicable digital (non-physical) formats, configurations, technologies and methods (including, without limitation, permanent downloads, temporary or “tethered” download, interactive and non-interactive streaming, “scan and match” services, digital and online/wireless karaoke services, and other audiovisual services) to any and all capable devices (including, without limitation, to personal and tablet computers and smartphones), in each case as now or hereafter known. Without limiting the foregoing, you acknowledge that the foregoing rights include the rights to allow Digital Service Providers any necessary rights of performance and reproduction required for the operation of such Digital Service Providers;
· create, reproduce, publicly perform and make available, and to authorize Digital Service Providers to reproduce, create and publicly perform and make available, free preview clips of your Recordings via streaming format either on Winamp Sites or via the Digital Service Providers;
· display and otherwise use your artist(s) and/or label name and logo (if you have one) and all Artwork, song and album titles, all trademarks, service marks, logos and trade names, and all artist, songwriter, producer and mixer names and approved likenesses, each as embodied in metadata within the Recordings or otherwise provided by you (“Materials”), on Winamp Sites, on the Digital Service Providers’ sites and services, and in any marketing, advertising or promotional materials for our Service or for the Digital Service Providers. Without limiting the foregoing, the Digital Service Providers may (but shall have no obligation to) create editorial content regarding you and your Recordings and may classify or categorize the same for inclusion within one or more genres;
· collect income from the Digital Service Providers from their exploitation of your Recordings (and to collect income after the term from exploitation of your Recordings during the term);
You also grant to Winamp and to your selected Digital Service Providers the right and license during the term and throughout the Territory to take all steps desired or required to effect the foregoing rights and to distribute your Recordings and Materials as contemplated in this Agreement, including without limitation, to store, host, cache, reproduce, convert, edit, serve, transmit and publicly perform such Recordings, and as otherwise required pursuant to our agreements with those Digital Service Providers, as may be amended from time to time during the term. You understand that Digital Service Providers may grant to Customers rights to use your Recordings beyond the term of this Agreement, even perpetual rights. As noted above, Digital Service Providers and/or we may decline to distribute or otherwise exploit any Recordings or other Materials (or to remove any Recordings that have already been distributed or offered to Customers) in our reasonable business judgment. You will be deemed to have approved any Artwork, photographs, biographical material or other information or materials that you provide to us.
3.5 YOUR RESPONSIBILITIES
You are solely responsible for and must have obtained all necessary rights, licenses, waivers, clearances and permissions, including without limitation all music publishing rights and licenses in order to distribute, reproduce, display, publicly perform, synchronize with audiovisual works or otherwise exploit the Recordings (including the lyrics of such Recordings) throughout the Territory for all Recordings and other Materials in order to enable Winamp and your selected Digital Service Providers to fully exploit all their rights hereunder free of any claims, liens, encumbrances or other restrictions. Your uploading of Recordings and delivery of any other Materials shall be your unqualified warranty and representation to us that you have obtained any and all such rights required and necessary for Winamp and your selected Digital Service Providers to sell, distribute, publicly perform, promote, and otherwise exploit such Recordings and Materials as contemplated under this Agreement, including the waiver of all so-called “moral rights”, under the laws of any jurisdiction and to the extent permitted by said laws, on your behalf as well as on behalf of any and all contributors involved in any manner with the creation and delivery of your Recordings.
Without limiting anything in this Agreement, you are solely responsible for and shall timely pay
· any and all royalties, including without limitation all mechanical royalties and synchronization fees, and all other amounts due to artists, producers, mixers, engineers, licensors and any other royalty participants from the sales, license, performance and/or other exploitation of your Recordings and Materials,
· any and all royalties, including without limitation all mechanical royalties and synchronization fees, that may be payable by you to the owners or administrators of copyrighted recordings (e.g., samples) and/or musical compositions embodied in your Recordings,
· all payments that may be required under union, guild or other collective bargaining agreements applicable to you or third parties, and
· any other royalties (including without limitation mechanical royalties), fees and/or sums payable with respect to the Recordings or Materials, including, without limitation, any royalties that may be required to be paid, pursuant to the applicable laws of any jurisdiction, as a result of authorized exploitations by Winamp or your selected Digital Service Providers of your Recordings for so-called performer’s rights, equitable remuneration rights or neighboring rights, however characterized under local law.
3.6 PAYMENT & ACCOUNTING TERMS
In full consideration of the rights and licenses granted hereunder, we will post in your Winamp wallet a percentage of all monies that we actually earn and receive from your selected Digital Service Providers which are directly attributable to their exploitation of your Recordings, after deducting any applicable payment processing fee and the fees from the Digital Service Providers.
If Winamp receives monies from a Digital Service Provider that is not attributable to any particular Creator account(s) or specific Recordings from any particular Creator account(s), Winamp reserves the right to use this sum for donation purposes.
You understand and acknowledge that Digital Service Providers may retain for themselves a portion of income that they receive from Customers and may deduct or withhold sums from the amount that they pay to Winamp. Sums retained or withheld by Digital Service Providers may include, without limitation, taxes and tariffs, administration fees, royalties or fees paid to third parties, wire transfer fees, and credit card processing fees and chargebacks. Winamp shall be entitled to rely on payments and accountings received from Digital Service Providers.
If we receive a claim or notice or otherwise reasonably suspect that any of your Recordings or Materials or your use of our Site or Service breaches any agreement, infringes any third party rights, violates this Agreement or any law, rule or regulation, that there is a dispute regarding the Recordings or Materials (including without limitation as to ownership or payment of monies), or that your activities involve misrepresentation, misconduct, deception, fraud, or other inappropriate conduct, then in addition to any other available rights and remedies, we may suspend or terminate the distribution of your Recordings and/or the term of this Agreement and/or withhold payment of monies to you in an amount reasonably attributable in our discretion to such Recording(s), Material and activity until and unless any and all claims or other conduct are favorably resolved to our reasonable satisfaction, and we may deduct from your payments our related attorneys’ fees and legal costs in connection.
In case your Recordings or Materials is taken down because of fraudulent activity, we may invoice you a fraudulent content takedown fee per track per channel.
You will forfeit any monies that are attributable to your fraud, infringement or other illegal activity.
Last version updated on September 21th, 2022